Spahn & Rose vs. City of Dubuque Release and DismissalTHE CITY OF
Dui
Masterpiece on the Mississippi
BARRY LIND
I1
CITY ATTORN
MEMORANDUM
To: May r Roy D. Buol and
Members of the City Council
DATE: December 6, 2013
RE: Spahn & Rose vs. City of Dubuque
This lawsuit is for the 2011 force main break in a sewer main under the old Public
Works Garage where Spahn & Rose was leasing space for material storage. Spahn &
Rose filed a lawsuit alleging $750,000 damage to its materials as a result of
contamination from exposure to the sewage. The case was set for trial beginning
December 3, 2013.
Les Reddick, Esq. represented the City on behalf of the Iowa Communities Assurance
Pool. Mr. Reddick reports that the case has been settled for $209,000 which is within
the City's coverage under our ICAP policy, subject to City Council approval.
Attached are the proposed release and dismissal.
I recommend approval of the release and dismissal.
BAL:tls
Attachments
cc: Michael C. Van Milligen, City Manager
Gus Psihoyos, City Engineer
Don Vogt, Public Works Director
Les Reddick, Esq.
F: \USERS \tsteckle \Lindahl \Spahn & Rose vs City of Dubuque \MayorCouncil_ ProposedRelease &Dismissal_120613.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
FULL AND FINAL RELEASE OF ALL CLAIMS
The undersigned, SPAHN & ROSE LUMBER CO., and anyone claiming by or through
them (collectively referred herein to as the "Releasor "), for and in consideration of the payment of
the sum of Two Hundred Nine Thousand Dollars ($209,000.00), the receipt and sufficiency of
which is hereby acknowledged, does hereby irrevocably and unconditionally waive, release,
acquit, and forever discharge CITY OF DUBUQUE (including its elected and appointed officials
in their individual and official capacities), the Iowa Communities Assurance Pool, American Risk
Pooling Consultants, Inc., Public Entity Risk Services of Iowa, LLC and York Risk Pooling
Consultants, Inc., together with their employees, volunteers, employers, principals, agents,
insurers, attorneys, officers, directors, predecessors, subsidiaries, affiliates, successors and assigns
(collectively referred to herein as the "Releasees "), of and from any and all liability, claims,
demands, charges, complaints, controversies, actions, causes of action, and suits at law or in
equity, of any kind or nature whatsoever, known or unknown, asserted or unasserted, suspected or
unsuspected, including without limitation any claim which was or could have been raised by
Releasor in a court of law or any other forum, and any claim under any local, state or federal
statute, and any claim under any other statutory, administrative, constitutional, contractual, tort,
common law or other legal or equitable theory whatsoever, which Releasor at any time heretofore
had or claimed to have had or which Releasor may have or claim to have regarding any matter
related or in any manner incidental to the Petition filed in the Iowa District Court for Dubuque
County, Case No. 01311 LACV057680, claiming damages from an October 4, 2011 sewer main
break (hereinafter collectively referred to as "claim" or "claims ").
This Release by Releasor includes the complete and total satisfaction of any claim Releasor
may have had against Releasees including without limitation claims for personal injuries,
emotional distress, medical expenses, wage loss, lost benefits, loss of income, loss of services, loss
of consortium, loss of property, damage to property, mental anguish, prejudgment interest,
post - settlement interest, general damages, liquidated damages, exemplary damages, compensatory
damages, punitive damages, infringement of civil /constitutional rights, unreasonable search, arrest
without probable cause, false arrest, false imprisonment, assault and battery, unlawful arrest,
malicious prosecution, use of excessive force, failure to properly investigate, failure to train,
acquiescence in unconstitutional conduct, maintenance of an unconstitutional custom, policy or
practice, failure to discipline, and expenses including but not limited to attorney fees and costs,
together with any and all other loss, damage, and claim of every kind, nature, and description,
resulting from or hereinafter resulting from the acts and omissions of the Releasees.
As further consideration for the payment of the aforesaid sum, Releasor shall immediately
dismiss the Petition filed in the Iowa District Court in and for Dubuque County, Case No. 01311
LACV057680 with prejudice. Releasor shall pay at its sole cost and expense all bills and expenses
incurred by Releaser as a result of the claims and Releasees shall have no liability for same.
Releasor further agrees to reimburse any person, insurance company, or other entity that has paid,
on behalf of the Releasor, any bills or expenses incurred in connection with the claims and
Releasees shall have no liability for same.
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Releasor does hereby agree to indemnify, defend and hold the Releasees harmless from
and against any and all liability, claims, demands, actions, causes of action and suits at law or in
equity, for injuries, expenses, and damages known or unknown, made against or sustained by the
Releasees, as a result of any amounts sought, claimed, or recovered by any insurer, person,
governmental agency or other entity subrogated to the rights of Releasor, against the Releasees, or
by any hospital, physician, medical provider or provider of services of whatever kind which
provided medical, hospital, or services of any kind to the Releasor. Such indemnification shall
include without limitation any and all attorney fees, court costs and any and all other costs and
expenses. Releasor does hereby agree to indemnify, defend and hold Releasees harmless from
and against any and all liability, claims, demands, actions, causes of action and suits at law or in
equity, for injuries, expenses, and damages known or unknown, made against or sustained by
Releasees as a result of any amounts sought, claimed, or recovered by any person who may now
have or may assert in the future a claim for loss of any services or consortium as a result of the
occurrence identified above. Such indemnification shall include without limitation any and all
attorney fees, court costs and any and all other costs and expenses.
Releasor acknowledges that the Releasees deny liability and responsibility for any and all
claims, and Releasor further acknowledges that the payment of the foregoing sum shall not be
construed as an admission of liability and is solely paid to preclude any additional litigation
expenses. Releasor represents and warrants that it has not assigned all or any portion of the rights,
titles, and /or interests in or with respect to the matters released hereunder, and that no trustee in
bankruptcy or assignee for the benefit of creditors has any right to the Releasor's claims hereby
released. Releasor also agree that the Releasees may use this Release against Releasor, Releasor's
successors, or any other person, in court or elsewhere, to show that no person is entitled to any
additional consideration should they ever attempt to assert any other claim for any reason
whatsoever against the Releasees as a result of the occurrence.
Releasor further agrees that it will be responsible for payment of any and all taxes,
including but not limited to federal, state, and local taxes, as a result of the payment and receipt of
the foregoing sum. Releasor further acknowledges that it fully understands the terms of the
settlement and that it voluntarily accepts said sum for the purpose of making full and final
compromise, adjustment, and settlement of any losses and damages. Releasor agrees that this
Release shall in all respects be interpreted, enforced, and governed by the laws of Iowa. The
language of all parts of this Release shall in all cases be construed as a whole, according to its fair
meaning. If, after the date hereof, any provision of this Release is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this Release, such
provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible, and be legal, valid and
enforceable.
This Release may be executed in multiple counterparts, and all counterparts executed by
the parties, whether or not such counterparts shall bear the execution of each of the parties, shall be
deemed to be, and shall be construed as one in the same agreement.
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THE UNDERSIGNED HAS READ THE FOREGOING FULL AND FINAL RELEASE OF ALL
CLAIMS AND FULLY UNDERSTANDS IT.
RELEASOR:
SPAHN & ROSE LUMBER CO.
By
Its
STATE OF IOWA )
DUBUQUE COUNTY ) ss:
On this day of , 2013, before me, the undersigned, a
Notary Public in and for said State, personally appeared to me
personally known, who being by me duly sworn, did say that he /she is the
respectively, of SPAHN & ROSE LUMBER CO.; that no seal has
been procured by the said corporation that said instrument was signed on behalf of said corporation
by authority of its Board of Directors; and that the said as such officer,
acknowledged the execution of said instrument to be the voluntary act and deed of said
corporation, by it and by them voluntarily executed.
NOTARY PUBLIC IN AND
FOR THE STATE OF IOWA
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IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY
SPAHN & ROSE LUMBER CO.,
Plaintiff,
vs.
CITY OF DUBUQUE,
(42- 6004596W)
)
)
)
)
)
)
)
)
)
Defendant. )
)
CITY OF DUBUQUE, )
)
Defendant /Third -Party Plaintiff, )
vs. )
)
RCM LABORATORIES, INC., )
d/b /a REGULATORY COMPLIANCE )
MANAGEMENT, )
)
Third —Party Defendant. )
Case No. 01311 LACV057680
DISMISSAL WITH PREJUDICE
COMES NOW, Plaintiff, Spahn & Rose Lu nber Co. and hereby dismisses all claims against
Defendant, City of Dubuque with prejudice.
SPAHN & ROSE LUMBER CO., Plaintiff
By:
Christopher C. Fry
O'Connor & Thomas PC
Roshek Building
700 Locust Street, Suite 200
Dubuque, Iowa 52001
CERIIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing
instrument was served upon all parties to the above
cause or to their attorneys of record by enclosing the
same in an envelope addressed to said parties or their
attorneys whose names and addresses appear below this
Certificate and delivering a copy to said parties or their
attorneys or by mailing the same with postage prepaid,
and by depositing said envelope in a United States Post
Office Mailbox in Dubuque, Iowa on the day of
, 2013.
Signature
Copy to:
Les V. Reddick
Kane, Norby & Reddick, P.C.
2100 Asbury Road Ste 2
Dubuque, Iowa 52001
ATTORNEY FOR CITY OF DUBUQUE
CeCelia C. Ibson
Ibson Law Firm
2629 Beaver Avenue Ste 3
Des Moines, Iowa 50310
ATTORNEYS FOR RCM LABORATORIES, INC.